Pennsylvania Workers' Compensation Lawyer Blog

As a general rule, the Pennsylvania Workers‘ Compensation Act requires medical providers to submit their bills to the workers’ compensation insurance carrier on the correct forms. Again, the usual rule is that the workers’ comp insurance carrier is not required to pay bills until they are submitted on the proper forms (and until supporting documentation is provided).

A recent decision by the Commonwealth Court of Pennsylvania, however, confirms the beliefs of us Pennsylvania workers’ compensation attorneys, who feel this technical step is not always necessary. In Shelton v. WCAB, decided by the Court on June 26, 2008, the workers’ compensation insurance carrier was ordered to pay medical bills even though the bills were not submitted on the proper forms.

In this case, the Court drew a distinction between the situations when the claim has already been accepted as opposed to one where there has never been liability of the workers’ compensation insurance carrier established. When the liability of the workers’ compensation insurance carrier has not yet been established, then bills must be on the proper forms. When we are dealing with an accepted claim, then this technicality may not be necessary.

Posted by Glenn Neiman | Permalink | Email This Post

Posted In: Case Law Update , Medical Benefits

Bookmark:

In a previous blog entry, I mentioned the April 28, 2008 decision by the Commonwealth Court of Pennsylvania in Diehl v. WCAB, which greatly limited what a workers’ compensation insurance carrier in Pennsylvania can do with an Impairment Rating Evaluation (IRE). This decision was very favorable to the injured worker. Unfortunately, on June 24, 2008, the Commonwealth Court of Pennsylvania issued an order, and granted the workers’ compensation insurance company’s application for reargument, and vacated the prior decision. This means that, for now, the law returns as it had been before the Diehl decision was issued (meaning the workers’ comp insurance company does NOT have to show job availability when trying to have benefits changed to partial based on an IRE).

Though there will be reargument on this case, and a new decision will be issued, many of us Pennsylvania workers’ compensation attorneys doubt that the new decision will be as favorable as the one which has been vacated. We will, of course, post about the new decision when it is made.

Posted by Glenn Neiman | Permalink | Email This Post

Posted In: Case Law Update , Worker Comp Generally , Workers Comp Appeals

Bookmark:

Many injured workers in Pennsylvania know not to sign a document they receive from the workers’ compensation insurance company without checking first with an experienced workers’ compensation attorney. Unfortunately, few injured workers are aware that some documents exist in the Pennsylvania Workers’ Compensation Act which can cause workers’ comp benefits to be reduced, or stopped, even if the documents are NOT signed by the injured worker.

When an injured worker returns to work in PA, he or she is still entitled to workers’ compensation benefits if there is still a loss in earnings (maybe the modified job pays less per hour, or offers fewer hours). The workers’ compensation insurance company must take some action if it wishes to reduce, or stop, weekly compensation benefits. In the old days, the workers’ compensation insurance company would have to file a Petition for Modification or Suspension, and litigate the issue. This is no longer the case.

These days, the workers’ compensation insurance company can simply file a Notification of Modification or Suspension, which contains an affidavit that the injured worker has returned to work, whether at pre-injury or reduced wages. If the Notification of Modification or Suspension is not “challenged” (appealed) by the injured worker, the Notification of Modification or Suspension has the same legal effect as if the injured worker signed a Supplemental Agreement, agreeing that the injured worker did return to work at those wages.

The challenge of the Notification of Modification or Suspension must be filed by the injured worker within 20 days of when the injured worker received the Notification of Modification or Suspension. According to a recent case in the Commonwealth Court of PA, Wawa v. W.C.A.B. (Seltzer), the date the injured worker received the Notification of Modification or Suspension is a finding of fact to be made by the Workers’ Compensation Judge (and will not be disturbed on appeal, if supported by “substantial evidence”).

This is yet another danger to the injured worker, who may be unaware that valuable rights can be lost simply by not taking action. It is very important that the injured worker be fully informed of the potential pitfalls contained within the Pennsylvania Workers’ Compensation Act.

Posted by Glenn Neiman | Permalink | Email This Post

Posted In: Case Law Update , Wage Loss Benefits , Worker Comp Generally , Workers Comp Appeals , Workers Compensation Litigation

Bookmark:

In an earlier blog entry, I explained the process of workers’ compensation appeals in Pennsylvania. Since the Supreme Court of PA can accept only those appeals it wishes, very few workers’ compensation cases are heard by the Supreme Court of Pennsylvania.

Unfortunately, on May 19, 2008, the Supreme Court of Pennsylvania announced that they have accepted the appeal in Cinram Manufacturing, Inc. v. W.C.A.B. (Hill), which had been decided last year by the Commonwealth Court of Pennsylvania. I say “unfortunately” because the decision had been favorable to injured workers, and seemed based on common sense.

In making its decision, the Commonwealth Court of PA found that a Workers’ Compensation Judge in Pennsylvania had the power to add to the description of injury, even if the injured worker did not file a Petition to Review the Notice of Compensation Payable (NCP). For example, in this case, a Petition for Termination was the only petition filed.

Previous decisions of the Supreme Court of Pennsylvania, in years’ past, suggested that a Petition to Review the NCP would have to be filed for the Workers’ Compensation Judge to be able to amend the description of injury. On the other hand, many cases have also noted that the form of the pleadings is not fatal in PA workers’ comp, and that a Workers’ Compensation Judge is usually able to decide the case based on the evidence presented, generally without regard to the petitions actually pending.

Creating more strict requirements only makes PA workers’ compensation more dangerous for the unwary. We will keep you posted on this, and other decisions, as they happen.

Posted by Glenn Neiman | Permalink | Email This Post

Posted In: Case Law Update , Workers Comp Appeals , Workers Compensation Litigation

Bookmark:

A common fear with an injured worker is the impact of his or her employer, or the workers’ compensation insurance carrier, filing for bankruptcy. In Pennsylvania, an injured worker need not be concerned with such a development. Whether it is the bankruptcy of the employer, or the workers’ compensation insurance carrier, in PA, workers’ compensation benefits should not be disturbed.

When a party files for bankruptcy, which is governed by Federal law, the main purpose (or at least the immediate purpose) is the protection of the “automatic stay,” provided by Section 362(a)(1) of the Federal Bankruptcy Code, 11 U.S.C. §362(a)(1). The “automatic stay” causes any collections efforts (including any litigation) to be stopped. A creditor usually must apply for permission with the bankruptcy court, in order to have the stay lifted. Only if the request is granted, and the stay is lifted, can the creditor take any action on the debt (including litigation). The automatic stay allows payments from the bankrupt party to stop. This would, of course, be catastrophic for an injured worker who relies on Pennsylvania workers’ comp benefits.

Workers’ compensation laws are State laws, as opposed to Federal law, such as bankruptcy. One of the exceptions to the “automatic stay” is an exercise of a State’s “police powers,” under 11 U.S.C. §362(b)(4). The Commonwealth Court of Pennsylvania has recently confirmed that “the administration of worker’s compensation claims by the State … is a valid exercise of a governmental unit’s regulatory power, and is exempt from the automatic stay.” Pope & Talbot v. W.C.A.B. (Pawlowski), decided on May 21, 2008. Therefore, workers’ compensation benefits in PA are usually to be paid regardless of the filing of bankruptcy. Similarly, litigation in workers’ compensation cases in Pennsylvania may continue, despite the bankruptcy filing.

In years past, if an employer in PA failed to carry Pennsylvania workers’ compensation insurance (which is a crime in Pennsylvania), and that employer filed for bankruptcy, the injured worker may have been left out in the cold. Fortunately, as part of Act 147, passed by the Pennsylvania Legislature in 2006, the Uninsured Employers’ Guaranty Fund (UEGF) was created. The UEGF, funded by payments from all workers’ comp insurance companies in PA, steps in when there is a claim against an uninsured employer (regardless of whether that employer is bankrupt). This fund provides a measure of security for the injured worker who, unknown to the worker, is employed by a company who fails to carry the required workers’ comp insurance.

Posted by Glenn Neiman | Permalink | Email This Post

Posted In: Case Law Update , Wage Loss Benefits , Worker Comp Generally , Workers Compensation Litigation

Bookmark:

As you may recall, last month I brought up the case of Mason v. WCAB (Joy Mining Machinery), in which the Commonwealth Court of PA punished an injured worker merely for taking his pension. In that case, the Court had said workers’ compensation benefits will be suspended, unless the injured worker shows either that he or she is disabled from all work, or that he or she is actively seeking work.

The Commonwealth Court of Pennsylvania has struck again, in Penn State v. WCAB (Hensal), decided on May 19, 2008. In this case, the injured worker argued that his workers’ comp benefits should not be stopped, even though he took his pension, because he was actively seeking work. As proof, the injured worker testified that he signed up for Career Link (a program run by the State of Pennsylvania) and periodically checked websites and newspaper ads, but found no work. Though the Workers’ Compensation Judge (WCJ), and the Workers’ Compensation Appeal Board (WCAB), agreed and found the injured worker’s efforts showed that he is truly looking for work and has not “voluntarily removed himself from the labor market,” the Commonwealth Court of Pennsylvania disagreed, and ordered the workers’ compensation benefits stopped.

Specifically, The Court said:

“Searching the Internet and newspaper ads for jobs, without more, does not constitute a job search; it constitutes “surfing” the web and reading the newspaper – it is window shopping. To show that he was engaged in a good-faith effort, a claimant has to show that he applied or sent applications for employment or other indicia that he was actively applying for employment.”

This case proves instructive on how to limit the damaging effects of taking a pension. Remember, too, that aside from this issue (of whether the PA workers’ compensation benefits are suspended due to the change in status), there is also the issue of the workers’ compensation insurance carrier taking a credit against the pension that is being taken. This process is littered with pitfalls which can permanently harm an injured worker’s rights under the Pennsylvania Workers’ Compensation Act. Before making a decision, like whether to take a pension, which could impact your workers’ compensation benefits, it is always a good idea to consult with a lawyer experienced in PA workers’ compensation matters.

Posted by Glenn Neiman | Permalink | Email This Post

Posted In: Case Law Update , Worker Comp Generally

Bookmark:

Experienced Pennsylvania workers’ compensation attorneys frequently are involved in cases where an injured worker, no longer able to perform his or her pre-injury job, is referred to other jobs in the community by a vocational counselor, at the request of the workers’ compensation insurance carrier. As lawyers who limit our practice to PA workers’ comp, we love to see cases reduce the power of the workers’ compensation insurance carriers to abuse this process.

Recently, on May 12, 2008, the Commonwealth Court of Pennsylvania decided PA Department of Corrections v. WCAB (Zvara). In this case, the claimant, who does not drive, was referred to five jobs, which were said by the workers’ compensation insurance carrier to be within the physical limitations of claimant. Claimant did not apply for any of the jobs (Often, the failure to apply for any of the referred jobs is nearly certain to cause the case to be lost). In this situation, however, the Court found that the workers’ compensation insurance carrier did not meet its burden of proof. Specifically, the workers’ compensation insurance carrier failed to prove public transportation was compatible with the hours of the offered jobs, or that the prospective employers would modify the hours of the jobs to accommodate the schedules of public transportation. The mere fact that the referred jobs were accessible by public transportation, without more, was not enough. Since the workers’ compensation insurance carrier did not meet its burden of showing jobs “available” to the claimant, the burden never shifted to claimant, to prove he or she applied for each job in good faith. As such, the Petition for Modification was denied.

Posted by Glenn Neiman | Permalink | Email This Post

Posted In: Case Law Update , Vocational Process , Workers Compensation Litigation

Bookmark:

An injured worker in Pennsylvania is generally entitled to be compensated for his or her lost wages (called “indemnity” benefits), and have medical expenses related to the work injury paid. When an injured worker loses the use of certain parts of the body, payment can also be obtained (this is called “specific loss” benefits). Included in “specific loss” benefits is compensation for scarring, or “disfigurement,” on the head, face or neck.

Under the Pennsylvania Workers’ Compensation Act, in Section 306(c), there is a list of body parts, and how many weeks of workers’ compensation benefits an injured worker would receive for the loss of each. For example, the loss of a hand leads to a payment of 335 weeks of workers’ compensation benefits. A foot is 250 weeks. Other amounts are listed for forearm, leg, lower leg, eye and more. Payment for fingers depends upon which finger is involved (from 100 weeks for a thumb to 28 weeks for the little finger). The Act also includes some period of additional compensation, called a “healing period.” For example, the lost hand adds a healing period of 20 weeks and the lost foot leads to an additional 25 weeks. Compensation for scarring on the head, face or neck is completely within the discretion of the Workers’ Compensation Judge, who can award from zero to 275 weeks, depending on how disfiguring the scarring is felt to be.

To obtain specific loss benefits in PA workers’ compensation, an injured worker must show that the part of the body at issue has been “permanently” lost “for all practical intents and purposes.” The quoted portions above are usually where disputes exist, often requiring the decision of a Workers’ Compensation Judge.

While the testimony of the injured worker is important in determining whether there is a loss of use “for all practical intents and purposes,” according to a recent case decided by the Commonwealth Court of Pennsylvania, medical evidence must also be presented in support of the injured worker. In Jacobi v. W.C.A.B., decided by the Court on February 12, 2008, the claimant testified about how he is limited in using his right middle finger (which had been caught in a freight door and subject to three surgeries, the last of which involved the placement of a screw), but the claimant did not present any medical evidence which stated that the use of the finger has been lost “for all practical intents and purposes.” The Court reversed the decision of the Workers’ Compensation Judge, who had awarded benefits to the claimant.

Posted by Glenn Neiman | Permalink | Email This Post

Posted In: Case Law Update , Worker Comp Generally , Workers Compensation Litigation

Bookmark:

One of the tools a workers’ compensation insurance company has in PA to reduce, or “modify,” workers’ compensation benefits is the Labor Market Survey (LMS) (Also called “Earning Power Assessment” (EPS)). This is used when the injured worker has physical limitations which prevent a return to the injured worker’s previous occupation.

As you can see by looking at Section 123.301 in the Regulations issued by the Pennsylvania Bureau of Workers’ Compensation, before an Employer can resort to using an LMS, the Employer must demonstrate that there is no job available with the Employer within the physical limitations of the injured worker . . . or maybe not.

Recently, the Commonwealth Court of Pennsylvania decided the matter of Rosenberg v. W.C.A.B. (Pike County), which dealt with this issue. The Court held, in a narrow 4-3 decision, however, that an Employer only had to address this issue if the injured worker offered evidence (which could just be testimony of the injured worker) that a job was indeed available with the Employer. Once that evidence was presented, then the Employer had the burden of proof to show no such job existed.

As the three Judges who dissented pointed out, this logic is blind to the fact that it is much easier for the Employer to show an absence of a suitable job than it is for an injured worker to show a job existed. One must wonder how an injured worker would know what is happening within the Human Resources department of their Employer (while the injured worker is home recovering from an injury yet).

This seems yet another case where the injured worker in PA gets the short end of the straw. Unfortunately, such a result seems to be happening all too frequently.

Posted by Glenn Neiman | Permalink | Email This Post

Posted In: Case Law Update , Vocational Process , Workers Compensation Litigation

Bookmark:

To answer an often asked question, in Pennsylvania, there is no limit to how long an injured worker can receive total disability workers’ compensation benefits. However, as a practical matter, it is difficult to receive total disability benefits in PA for more than two years. After an injured worker in Pennsylvania has received total disability benefits for 104 weeks, the workers’ compensation insurance company can request the injured worker attend an Impairment Rating Evaluation (IRE).

An IRE is somewhat different than an Independent Medical Examination (IME), as the doctor who performs an IRE is selected by the Pennsylvania Bureau of Workers’ Compensation (the workers’ compensation insurance carrier selects the doctor in an IME). The doctor who performs the IRE will examine the injured worker and review records. Subsequently, the doctor will decide what percentage the injured worker is impaired from the work injury. This percentage is determined by guidelines developed by the American Medical Association.

If the injured worker is found to be less than 50% impaired by the work injury, the workers’ compensation insurance carrier may be able to have the status of the disability changed from “total” to “partial.” While this change does not effect the amount of workers’ compensation benefits the injured worker receives, it does put a time limit on how long the benefits can be received. An injured worker in PA can only receive partial disability benefits for a maximum of 500 weeks.

You will notice that I said the workers’ compensation insurance company “may” be able to change the status. If the workers’ compensation insurance carrier requests the IRE within 60 days of when the injured worker has received 104 weeks of total disability, the workers’ compensation insurance company need only file a Change of Status form and the status of benefits automatically changes from total to partial.

However, the situation is very different if the workers’ compensation insurance carrier requests the IRE after the 60 day period (after the 104 weeks of total disability). In that case, according to a recent decision by The Commonwealth Court of Pennsylvania, apparently, the workers’ compensation insurance carrier must actually prove some form of job availability to have the status changed to partial. This decision, in the case of Diehl v. W.C.A.B. (IA Construction), filed on April 28, 2008, makes the question of when the IRE request was made very important.

Posted by Glenn Neiman | Permalink | Email This Post

Posted In: Case Law Update , Workers Compensation Litigation

Bookmark:

An injured worker in PA can settle both the wage loss and medical parts of his or her case by entering into a Compromise & Release Agreement. This is something which can only be done when both the injured worker and the workers' comp insurance company agree to settle the case. Neither side can force the other to settle a case. Once the parties agree to the terms of a settlement, a Compromise & Release Agreement must be prepared, detailing the terms of the settlement. Then, before the settlement is final, a hearing must be held before a Workers’ Compensation Judge, who must be satisfied that the injured worker understands the terms and conditions of the settlement.

Recently, the Commonwealth Court of Pennsylvania decided that a Compromise & Release Agreement could not be approved because the injured worker had died before a hearing to approve the settlement could be accomplished. This case, Miller v. W.C.A.B. (Electrolux), was decided on January 4, 2008.

Understand that settling a workers’ compensation case in Pennsylvania is a very complicated process. It is very important that you have an experienced workers’ compensation lawyer working for you, to make sure that you receive the maximum recovery possible, and that your rights be properly protected.

Posted by Glenn Neiman | Permalink | Email This Post

Posted In: Case Law Update , Workers Compensation Settlements

Bookmark:

We are often asked by injured workers about things related to Independent Medical Examinations (IME). The Pennsylvania Workers’ Compensation Act allows a workers’ comp insurance company to send an injured worker to a doctor of their choosing approximately twice a year. If an injured worker does not attend an IME, the workers’ compensation insurance company can file a petition to suspend workers’ compensation benefits.

Whether the IME is just a visit to be examined by the doctor the insurance company has selected varies by the case, though this does remain the situation in the vast majority of cases. The situation gets more complicated when the IME doctor asks that some additional testing be done on the injured worker. Whether the injured worker has to agree to this additional testing depends on the test at issue and the circumstances in that case.

According to a decision by the Commonwealth Court of Pennsylvania, an IME does include “ . . . all reasonable medical procedures and tests necessary to permit a provider to determine the extent of employee’s disability.” This was in the case of Coleman v. W.C.A.B. (Indian Hosp.), decided in 2004. The Court said the workers’ compensation insurance company must prove the test is necessary, has no more than minimal risk, and is not unreasonably intrusive. In that case, the Court found the injured worker did have to have an MRI done.

Recently, however, the Commonwealth Court of Pennsylvania found that an injured worker did not have to agree to an EEG test, which would have required the injured worker being in the hospital for 72 hours. The workers’ compensation insurance company did not show the likelihood the test would give useful information. This decision, in the case of Peters Township School District v. W.C.A.B. (Anthony), was decided April 2, 2008.

Posted by Glenn Neiman | Permalink | Email This Post

Posted In: Case Law Update , IME

Bookmark:

Logic may make you think that if you are permanently disabled from your career as a result of a work injury, you are free to take your pension and continue receiving workers’ compensation benefits. Unfortunately, this is not the case in Pennsylvania, and whether to take a pension in a PA workers’ compensation case is a very important decision, which should only be done after discussing your particular situation with an experienced Pennsylvania workers’ compensation attorney.

When an injured worker starts taking his or her pension in PA, the workers’ compensation insurance company can argue that the injured worker is no longer entitled to workers’ compensation benefits, because the injured worker has “left the workforce.” The injured worker must then show a Workers’ Compensation Judge either that he or she is actually seeking employment or that he or she is not capable of performing any work at all (not just the injured worker’s old job, but any job in the entire labor market) as a result of the work injury. If the injured worker does not prove one of these two things, a Workers’ Compensation Judge can suspend (stop) the injured worker’s wage loss benefits (the weekly or bi-weekly checks). The injured worker’s right to medical treatment for the injury is not affected.

The case I recently saw that brought this situation to mind, Mason v. W.C.A.B. (Joy Mining Machinery), was decided by the Commonwealth Court of Pennsylvania on March 18, 2008.

This is yet another pitfall used by the workers’ comp insurance companies in Pennsylvania to cause workers’ compensation benefits to stop. The best defense an injured worker has is the representation of a law firm experienced in PA workers’ compensation matters.

Posted by Glenn Neiman | Permalink | Email This Post

Posted In: Case Law Update , Wage Loss Benefits

Bookmark:

In a recent decision favorable to injured workers in PA, the Supreme Court of Pennsylvania said that, under certain circumstances, a workers’ compensation insurance company must pay not only to modify a van to be wheelchair accessible, but to pay for the cost of the van itself. This is an important change in the law, because there had been an older case, finding the workers’ compensation insurance company was only responsible to pay for making a van wheelchair accessible (and not for the cost of the van itself).

The injured worker in this case, who was paralyzed in a work injury, was not able to get out of the house, even to medical appointments, without this special van. Fortunately, the Court saw the unfairness of making the workers’ compensation insurance company pay only to modify the van for a wheelchair, when the injured worker might then not even be able to afford buying the van itself. The Court said, “ . . . the van is crucial to restore some small measure of the independence and quality of life that existed before the work injury.”

This rule is probably limited to cases like this, involving a catastrophic injury. The Court also said the situation of the injured worker in each case needs to be examined. For example, is a new van required? Did the injured worker own a van before the injury? Was any automobile owned by the injured worker before the injury? The answers to these questions, and others, would determine whether the workers’ compensation insurance company would have to pay for the cost of the van in any future case.

This case is titled, Griffiths v. W.C.A.B. (Seven Star Farms, Inc.), and it was decided by The Supreme Court of Pennsylvania on March 19, 2008.

Posted by Glenn Neiman | Permalink | Email This Post

Posted In: Case Law Update , Medical Benefits

Bookmark: